Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI901109. Mary E. Fuller, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Edward Delfinio Munoz, Sr., was sentenced prior to the effective date of the amendment of Penal Code section 4019; his sole contention on appeal is that he is retroactively entitled to the increased custody credits provided in amended section 4019. We affirm.
Undesignated statutory references are to the Penal Code.
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to return to its wording prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns only the prior amended version of section 4019 that became effective on January 25, 2010.
BACKGROUND
A jury convicted defendant of three counts of driving under the influence (DUI) (Veh. Code, § 23152, subd. (a); counts 1, 2, 4) and two counts of driving with a 0.08 percent or greater blood-alcohol content (Veh. Code, § 23152, subd. (b); counts 3, 5). The jury also found, as to count 5, that defendant had a blood-alcohol concentration of 0.15 percent or greater. (Veh. Code, § 23578.) The trial court found, as to count 1, that defendant had three separate prior DUI convictions. (Veh. Code, § 23550.) As to counts 2 through 5, the trial court found that defendant had a prior felony DUI. (Veh. Code, § 23550.5.) The trial court also found that defendant had a prison prior. (§ 667.5, subd. (b).)
On January 21, 2010, defendant was sentenced. For each of the five counts, the trial court imposed the aggravated term of three years. The prison terms imposed for counts 2 and 4 were set concurrent to count 1, and the terms imposed for counts 3 and 5 were stayed pursuant to section 654. An additional, consecutive one year was imposed for the prison prior. Thus, the total imposed sentence was four years. Defendant was given credit for 214 actual days in custody and 106 days of conduct credit pursuant to former section 4019.
Defendant filed this appeal on January 22, 2010. On January 25, 2010, the amendment of section 4019 became effective.
The facts underlying defendant’s conviction are not relevant to the determination of the issue on appeal.
Section 4019 permits defendants to earn credit for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Under the version of section 4019 in effect at the time of defendant’s sentencing, he had accrued conduct credit of “two days for every four days [he was] in actual presentence custody.” (Duff, at p. 793.) During the pendency of this appeal, section 4019 was amended to provide, to qualified defendants, for the accrual of two days of conduct credit for every two days of presentence custody. (§ 4019, subd. (f).)
Defendant contends that the amendment should be interpreted to be retroactive so as to entitle him to additional conduct credits so that he may preserve the issue pending our Supreme Court’s review of the same issue. The People contend: 1) the appeal should be dismissed because it raises only an issue concerning calculation of custody credits, and 2) the amendment of section 4019 was prospective. We hold that defendant can raise this issue on appeal, but the amendment of section 4019 was prospective. The impact of the amendment of section 4019 has split our sister Courts of Appeal and, as noted by defendant, is pending review in our Supreme Court. As that court will have the last word on the subject, we discuss the issue only summarily.
See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
A. Standing
The People contend that section 1237.1 required defendant to request recalculation of his custody credits in the trial court before he could raise this issue on appeal. Defendant contends the issue is cognizable because an interpretation of law is required. We agree with defendant.
“No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” (§ 1237.1, italics added.)
As noted by defendant, as of his January 21, 2010 sentencing, “the superior court correctly computed [his] presentence credits under then-existing section 4019.” Defendant’s appeal raises a question of law, whether the amendment of section 4019 retroactively entitles him to additional custody credits, and is not predicated on “an error in the calculation of presentence custody credits.” (§ 1237.1.) Accordingly, we address the merits of his contention.
B. Retroactivity
The amendment of section 4019 occurred in section 50 of Senate Bill No. 18 (2009–2010 3d Ex. Sess.). That bill ended with section 62, which stated that the “act addresses the fiscal emergency declared by the Governor....” (Stats. 2009, ch. 28, § 62.) The bill did not contain a saving clause regarding section 4019, i.e., a clause stating that the amendment shall have prospective application only.
As an amendment to the Penal Code, the amendment of section 4019 “ ‘is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753; see also § 3 [“No part of [the Penal Code] is retroactive, unless expressly so declared”]; In re E.J. (2010) 47 Cal.4th 1258, 1272 [“ ‘[S]ection 3 reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted “unless express language or clear and unavoidable implication negatives the presumption.” [Citation.]’ [Citation.] ‘[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application’ ”].) Neither the bill that amended section 4019 nor the legislative history contains any such clear and unavoidable implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that, for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b) & (c), added by stats. 2009-2010, 3d Ex. Sess., ch. 28, § 41, p. 4422.) By necessary implication, all other enhanced credits for all other defendants are prospective only.
We recognize that, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (In re Estrada (1965) 63 Cal.2d 740, 748.) However, presentence conduct credits are not a mitigation of punishment. They are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405.)
DISPOSITION
The judgment is affirmed.
We concur: MILLER J., CODRINGTON J.